MONEX CORPORATION AND MARYLAND CASUALTY COMPANY, APPELLANT,
v.
JOSE MERCADO, APPELLEE
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In this workers' compensation case, the appellate court reversed the industrial claims judge's findings regarding the extent of the claimant's permanent disability and temporary total disability, finding insufficient evidentiary support. The court affirmed the awards for medical treatment and attorney's fees but reversed the vocational counselor fee award and remanded for further findings consistent with statutory limitations.
The court reversed the thirty-five percent permanent impairment finding for lack of evidentiary support; reversed the temporary total disability award because the claimant did not attempt to return to work and the medical evidence contradicted total disability; affirmed the medical treatment award but limited future medical care to statutory requirements; permitted attorney's fees to be determined on remand; and reversed the vocational counselor fee award as impermissible.
[1] A finding of permanent partial disability must be supported by competent, substantial evidence and sufficient justification in the order.
[2] Temporary total disability benefits generally require a claimant to make an effort to return to work.
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Join FLexlaw to unlock all legal intelligence“This statement does not reveal the rationale for the award, and we cannot find competent, substantial evidence to support it.”
Establishes the standard requiring adequate findings supported by competent evidence to justify disability ratings.
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Join FLexlaw to unlock all legal intelligenceMercado, a machine shop operator, was injured in a compensable accident in 1975. Multiple physicians evaluated him, with the highest impairment rating…
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PER CURIAM.
Appellee, a machine shop operator, was injured in a compensable accident in 1975. He was treated by numerous physicians who gave differing impairment ratings, the highest being twenty-five percent permanent partial disability to the body as a whole. The judge of industrial claims found that appellee had suffered a thirty-five percent permanent partial disability, awarded temporary total benefits for a period of almost two years, awarded payment of certain medical bills, and held that attorney’s fees were justified and a vocational counselor’s fees should be paid by the appellants. Appellants challenge all these rulings.
We reverse the judge of industrial claims’ finding of thirty-five percent permanent impairment. None of the physicians gave that high a rating, nor did the order state sufficient justification for the award; the order simply found thirty-five percent permanent partial disability “based upon [claimant’s] present physical impairment.” This statement does not reveal the rationale for the award, and we cannot find competent, substantial evidence to support it. Williston Welding Fabricating Co. v. Brooks, IRC Order 2-3167 (May 25, 1977). On remand, the judge of industrial claims should make findings based on the record.
We also reverse the finding of temporary total disability because the doctor who testified to a date of maximum medical improvement first said appellee had been temporarily, totally disabled but later corrected himself by stating that the disability during the time at issue was only partial. Generally, moreover, a claimant must make an effort to return to work before he can establish temporary total disability. Martin Marietta Corp. v. Johnson, 7 FCR 355, cert. denied 283 So. 2d 557 (Fla.1973). Appellee in this case did not attempt to work after his accident.
In their third point, appellants contend the judge of industrial claims erred in awarding payment to one of appellee’s doctors and in ordering payment for “future medical care as is consistent with his injuries.” There was evidence the doctor in question received authorization by telephone, so there was no abuse of discretion in finding the doctor’s treatment reasonable and necessary. The provision for future medical care, however, failed to comport with the limitations of § 440.13(3)(b), Florida Statutes (1975), and is amended to reflect those limitations. See Luv Auto Sales v. Murphy, IRC Order 2-3567 (October 10, 1978), cert. dism. 373 So. 2d 459 (Fla.1979).
There was no error in the finding that attorney’s fees were justified. The judge of industrial claims did not specify the amount of the fee, nor did he state what portion of the award the fee would be based on. Given the language of the order, appellee’s attorney will have to establish the basis for a fee award, and the judge of industrial claims may, on the proof submitted, enter an appropriate order. The order of payment for services by a vocational counselor, however, was erroneous. The appellants may not be taxed for charges other than the fee for the counselor’s expert testimony. Rinker Materials Corp. v. Ingraham, IRC Order 2-3150 (April 29, 1977), cert. denied 362 So. 2d 1053 (Fla.1978).
Affirmed in part, reversed in part, and remanded for further findings consistent with this opinion.
ERVIN, SHIVERS and SHAW, JJ., concur.
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KEN Lones Landscaping & Middlesex Ins. Co. v. Tucker, 395 So. 2d 272 (Fla. 1st DCA 1981)…kers’ compensation system for longer periods of payment of temporary total disability. In a number of recent decisions, this court has found it necessary to reverse unsubstantiated awards of temporary total disability. Monex Corporation v. Mercado, 379 So. 2d 439 (Fla. 1st DCA 1980); Dade County School Board v. Walker, 379 So. 2d 1026 (Fla. 1st DCA 1980); Mora v. Max Bauer Meat Packing, Inc., 378 So. 2d 119 (Fla. 1st DCA 1980); Cling Electric, Inc. v. Jones, 376 So. 2d 481 (Fla. 1st DCA 1979). The order her…
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JOY Footwear Corp. & Md. Cas. Co. v. Ovidio Folgueral, 409 So. 2d 188 (Fla. 1st DCA 1982)…lly disabled from 3 January 1978 to 20 June 1978. There is no evidence that he made a good faith work search for jobs within his physical limitations during that period. Therefore, I would reverse this finding on authority of Monex Corp. v. Mercado, 379 So. 2d 439 (Fla. 1st DCA 1980). The doctor admits that he did not comply with the reporting requirements of Section 440.13(1), Florida Statutes (Supp.1980). I would reverse the deputy’s requirement that the employer/carrier pay this bill because the deputy d…
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Stewart-Decatur Sec. & Sentry Ins. Co. v. Kropp, 396 So. 2d 256 (Fla. 1st DCA 1981)…hat period, competent substantial evidence does not support the deputy commissioner’s finding of temporary total disability. Compare Martin Marietta Corp. v. Johnson, 7 FCR 355, cert. den. 283 So. 2d 557 (Fla.1973), and Monex Corporation v. Mercado, 379 So. 2d 439 (Fla. 1st DCA 1980). Further, since the only medical testimony indicated a 27% permanent partial disability and since no evidence of a work search was presented, the deputy commissioner erred in finding an increased disability based on loss of wage-…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Caivano v. State, 283 So. 2d 557 (Fla. 1973)
- Mavis Johnson v. Martin Marietta Corp., 283 So. 2d 557 (Fla. 1973)